Document 75.0 has been uploaded to PACER. It is a notice of a hearing requested by IH, over a Rossi response and objection to IH request for production, document 75.1.
The hearing is scheduled before the Magistrate, December 6, 2016 at 2 PM.
Aside from some general objections, this stands out in Document 75.1:
3. Defendants’ Instruction No. 9: Plaintiffs object to the time period set forth in Instruction No. 9 on the grounds that any video, photographs, or other responsive documents and/or information which was “created, recorded or fixed in a tangible medium of expression” after the conclusion of the Guaranteed Performance Test is not likely to lead to the discovery of admissible evidence. All of the matters and issues raised by the parties take place before and/or at the conclusion of the Guaranteed Performance Test in February 2016. Accordingly, any photographs and/or recordings taken after that time would be completely irrelevant and impertinent to the instant case, nor could it lead to the discovery of relevant or admissible evidence as the matters complained of had already concluded.
(We do not have the instructions.)
Personally, I can imagine how later photography of the Doral Plant could be relevant. In particular, there are issues about the layout of the "customer area" and ventilation of same. Was there removal of "customer equipment"? Yes, that might be protected under some privilege, but ... was there continued surveillance video? Was there removal of evidence that may have been described by Murray? In any case, IH will, I'm sure, advocate for what they need. This was the production request and the specific Rossi response to it.
Request No. 1: All videos, photographs or other recordings of visual images (regardless of the medium on which the recording is stored) created, recorded or fixed in a tangible medium of expression on or after January 2, 1015, of (a) the Doral Location (either of the inside or outside of the Doral Location), (b) some or all of the contents of the Doral Location, (c) any individuals inside the Doral Location, or (d) events or activities occurring at the Doral Location. This Request includes, but is not limited to, all of the “movies” and “photos” referenced by Andrea Rossi in his blog posting of May 1, 2016, a copy of which is attached as Exhibit A.
Answer: Subject to Plaintiffs objections to the instructions above, Plaintiffs shall make the responsive, non-privileged, documents and/or information available for inspection and copying at the office of the undersigned counsel within fifteen (15) days of the date of this Response. In the alternative, the undersigned counsel will confer with counsel for Defendants and will coordinate to have copies of such responsive documents/information made for Defendants at Defendants’ expense.
My personal reaction: I would look at this objection and think, "He's hiding something." If there is any possible relevance, I expect the Magistrate will overrule the objection. I looked up the blog post (since we don't have the Exhibit). My emphasis:
May 1, 2016 at 2:46 AM
Dear Mr. Rossi,
In one of your replies you briefly mentioned that IH had guided tours with potential customers during the one year test of the 1 MW plant.Can you tell us a little bit more about these happenings??Like:
* How many guided tours
* When was the last guided tour by IH.
May 1, 2016 at 7:52 AM
We have the movies of them, because the plant had cameras for security issues, and photos, but all this information cannot be published before it is disclosed in Court.
I can make this statement, though: all I said in this blog about the 1 year test of the 1 MW E-Cat will be sustained by undisputable evidence in Court.
I say this now: all the main investors that gave real money to IH before IH bought other IP around have repeatedly visited our plant. I can also add this, because it is already public: the ERV made a partial report every 3 months and the results were the same as in the final report. This means that IH received a report in April, a second report in July, a third report in October, before the final report. The results of all these reports were the same, moreless. IH not only never criticized the reports, but shown the reports to Woodford and in an official conference in China, using them to collect investments. The comments of Darden about the reports can be read in his interviews after the Chinese conference.
So, for one year of test IH accepted with great enthusiasm the reports, used them to get enormous investments from funds and never made a single communication to the ERV, who sent to them all the preliminar reports, not a single word in negative.
The situation changed as soon as payment time came.
We now know that IH objected to the "GTP and the "ERV," December 4, 2015, from a letter covered in Rossi Request No. 30 in Document 70.3:
REQUEST NO. 30: Any and all documents which support and/or pertain to your claim that “Neither IPH nor IH ‘engaged’ Mr. Penon to serve as the ERV for the Guaranteed Performance process, which is a requirement under Section 5.”, (sic) as stated in the letter of December 4, 2015, which has been attached hereto as Exhibit “A”.
REQUEST NO. 31: Any and all documents which support your position that “The project on which Leonardo is currently working cannot be the Guaranteed Performance process set forth in the Agreement”, as stated in the letter dated December 4, 2015 attached hereto as Exhibit “A”.